Decision Date: 08/07/95 Archive Date:
08/07/95
DOCKET NO. 93-18 769 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased evaluation for a service-
connected left knee disorder, currently evaluated as 40
percent disabling.
2. Entitlement to an increased evaluation for a service-
connected low back disorder, currently evaluated as 40
percent disabling.
3. Entitlement to service connection for bilateral
defective hearing.
4. Entitlement to service connection for a bilateral hand
condition.
5. Whether new and material evidence has been submitted to
reopen claims for service connection for disabilities
involving the appellant's left hip, right knee and cervical
spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Associate Counsel
INTRODUCTION
The appellant served on active duty from January 1951 to
December 1952, and from January 1955 to August 1961.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 1991, rating decision issued
by the St. Petersburg, Florida, Department of Veterans
Affairs Regional Office (VARO).
The Board notes that a claim under 38 C.F.R. § 4.16 for a
total rating based on individual unemployability due to
service-connected disabilities was denied by VARO rating
action in July 1993. Since this claim is not in appellate
status at this time it will not be considered on appeal.
The Board will therefore proceed to consider the claims
which are presently certified for appellate review. See
Certification of Appeal, VA Form 1-8 (August 16, 1993).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that his service-
connected left knee and low back disabilities are more
disabling than currently evaluated. In addition, he
contends that his bilateral defective hearing is
attributable to an in-service concussion injury sustained in
1957 or 1958, and that the other claimed disabilities,
involving his hands, left hip, right knee and neck, were
caused by the disabling effects of his service-connected low
back and left knee disabilities. He, therefore, requests
service connection for these conditions on a secondary
basis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file(s). Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that preponderance of the evidence
is against the appellant's claims seeking entitlement to
increased disability evaluations for his left knee and low
back disorders.
Further, it is the decision of the Board that the appellant
has not met his statutory duty of submitting evidence
sufficient to justify a belief that his claims for service
connection for bilateral defective hearing and a bilateral
hand condition are well-grounded. Further, it is the
decision of the Board that new and material evidence has not
been submitted which enables us to reopen and review the
record as to the appellant's claims seeking entitlement to
service connection for disabilities of the left hip, right
knee and cervical spine.
FINDINGS OF FACT
1. The appellant's left knee disability is currently
manifested by complaints of discomfort and pain with
associated swelling, tenderness and atrophy of the thigh,
with clinical findings significant for severely limited
range of motion on flexion to 30 degrees of full motion and
x-rays showing severe hypertrophic degenerative joint
disease.
2. The appellant's service-connected low back disorder is
currently manifested by reports of chronic and severe low
back pain, with associated radicular type pain and numbness
in the lower extremities, with clinical findings on VAX in
1991 showing characteristic pain on motion of the lumbar
spine, with x-rays showing severe hypertrophic degenerative
disc disease of the apophyseal joints with anterior
subluxation of L4 over L5.
3. The evidence of record fails to show any disability of
service origin which is etiologically related to the
appellant's presently diagnosed bilateral defective hearing
or which shows a relationship between his service-connected
low back disorder and his complaints of numbness in his arms
and hands.
4. The appellant's claims of service connection for
disabilities involving his left hip, right knee and cervical
spine were the subject of unfavorable rating decisions of
VARO in May 1986 (left hip), February 1987 (cervical spine)
and March 1989 (right knee). Those decisions were not
appealed and became final.
5. The new evidence submitted by the appellant since VARO
denied service connection for disabilities involving his
left hip, right knee and cervical spine does not provide a
basis to establish a direct or secondary relationship
between those conditions and the appellant's period of
military service, his post service complaints or his
service-connected left knee and low back disorders
CONCLUSIONS OF LAW
1. The appellant's service-connected left knee disorder is
no more than 40 percent disabling pursuant to the schedular
criteria; an extraschedular evaluation is not warranted. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part
4, Diagnostic Code 5262 (1994).
2. The appellant's service-connected low back disorder is
no more than 40 percent disabling under pertinent schedular
criteria; an extraschedular evaluation is not warranted. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
Diagnostic Code 5293 (1994).
3. The appellant has not presented a well-grounded claim
for service connection for bilateral defective hearing or
for the claimed bilateral hand condition. 38 U.S.C.A. §
5107(a) (West 1991).
4. VARO's rating decisions of May 1986, February 1987, and
March 1989, are considered to be final with respect to the
denial of service connection for the claimed disabilities of
the left hip, right knee and cervical spine; evidence
submitted since those decisions does not constitute new and
material evidence which allows the Board to reopen and
review the appellant's claims of service connection for
these conditions. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991);
38 C.F.R. §§ 3.104(a), 3.156(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Disability Evaluation: Left Knee and Low Back
The appellant is seeking higher disability evaluations for
his service-connected disabilities of the left knee
(postoperative osteotomy, left knee, with severe arthrosis,
flexion contracture and osteoarthritis) and low back
(mechanical low back syndrome with degeneration of L3-4,
lumbar disc and spondlylolisthesis with hyperesthesia of
each foot). 38 U.S.C.A. § 1155 (West 1991).
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 C.F.R. Part 4 (1994). Separate
diagnostic codes identify the various disabilities.
Consideration of the whole recorded history is necessary so
that a rating may accurately reflect the elements of
disability present. 38 C.F.R. §§ 4.1, 4.2 (1994); Peyton v.
Derwinski, 1 Vet.App. 282 (1991).
Left Knee Disorder
After having reviewed all of the relevant medical evidence,
the Board is of the opinion that the appellant is
appropriately rated for his service-connected left knee
disorder at the 40 percent disability rating level. The
appellant's complaints of increased left knee pain, with
associated swelling, instability and atrophy of the thigh
and calf, noted in the record in this case, have been
considered; however, the Board assigns the greater weight of
probative value to the objective medical evidence, in
particular, the recent VA compensation examination (VAX)
conducted in March 1991.
Clinical findings on VAX in March 1991, were significant for
range of motion on flexion severely limited to 30 degrees of
full motion (140 degrees). In addition, there was obvious
swelling of the left knee compared to the right and there
was tenderness throughout the knee joint. It was also noted
that the appellant's left leg was two (2) centimeters
shorter than his right leg. He also was noted to be walking
with a limp and using a cane; however, his carriage was
normal. There was also some atrophy of the left thigh
muscle compared to the right. X-rays of the left knee
revealed severe hypertrophic degenerative joint disease,
status post high tibial osteotomy. It was further noted
that the appellant wore bilateral knee braces and that he
used a cane and wheelchair on occasion for ambulation.
Diagnosis established on the basis of the above findings was
residuals of postoperative osteotomy and other surgeries of
the left knee with severe osteoarthritis and severe flexion
contracture. The Board notes that the clinical findings and
diagnosis indicated on the VAX conducted in February 1989,
are essentially consistent with those noted on the above-
cited examination, except for increased flexion loss of
motion (limited to 90 degrees in 1989).
At his hearings held at VARO in March 1992 and March 1993,
the appellant reported that his left knee continued to cause
him difficulties with regards to chronic pain and limited
mobility.
Based on the above findings, and in accordance with the
provisions of 38 C.F.R. §§ 4.7, 4.20, the Board concludes
that the disability picture presented supports the currently
assigned 40 percent evaluation for the left knee according
to the schedular criteria set forth in diagnostic code 5262,
which provides for a 40 percent rating for impairment of the
knee manifested by nonunion of the tibia and fibula, with
loose motion, requiring the use of a brace. 38 C.F.R. Part
4, Code 5262 (1994). This rating represents the maximum
schedular evaluation that can be assigned under code 5262.
The appellant's complaints of discomfort and pain have been
considered; however, in view of the above medical findings
and application of the schedular criteria, it appears that
such complaints are insufficient by themselves to establish
a ratable increased level of overall disability. 38 C.F.R.
§ 4.40 (1994).
Based upon the objective medical evidence, the Board
concludes that a higher disability rating (above 40 percent)
under diagnostic code 5256 or 5261 is not warranted in this
case due to clinical findings which are negative for
ankylosis or limitation of extension of the left leg to 45
degrees. A combined rating under diagnostic code 5003-5262
is not required in this case since the knee disability is
currently manifested by limited range of motion, and
accordingly, has been assigned a compensable evaluation
under code 5262.
Low Back Disorder
A longitudinal review of all of the evidence of record
persuades the Board that the appellant's service-connected
low back disorder is more appropriately assigned a 40
percent disability rating according to the schedular
criteria set forth under diagnostic code 5293. The
objective findings noted on VAX conducted in March 1991, as
well as those findings noted on VA neurologic examination
conducted in August 1991, when considered along with the
appellant's reported complaints of chronic and severe low
back pain with radicular type pain and numbness into the
lower extremities, are consistent with "severe" symptoms of
sciatic neuropathy. 38 C.F.R. Part 4, Code 5293 (1994).
Clinical findings on the 1991 VAX revealed characteristic
pain on motion of the lumbar spine, with x-rays showing
severe hypertrophic degenerative disc disease of the
apophyseal joints with anterior subluxation of L4 over L5.
The diagnosis established on the basis of these findings was
intervertebral disc syndrome at L3-L4. Based on these
findings, and in accordance with the provisions of 38 C.F.R.
§§ 4.7, 4.20, the Board concludes that the disability
picture presented supports a 40 percent evaluation according
to the schedular criteria. The appellant's medical history
and his reported complaints of low back pain and
radiculopathy appear consistent with the level of
symptomatology demonstrated by the evidence of record. 38
C.F.R. § 4.40 (1994).
Based upon the objective medical evidence, the Board
concludes that a higher disability rating (above 40 percent)
under diagnostic code 5293 is not warranted in this case due
to clinical findings which are negative for associated pain
and "demonstrable muscle spasm" of the appellant's lumbar
spine; as indicated above, the disability, although severe
in nature, is essentially manifested by radicular type pain
and numbness into the lower extremities.
Extraschedular Consideration
Application of extraschedular provisions is not warranted in
this case. 38 C.F.R. § 3.321(b) (1994). There is no
evidence that the left knee or low back disability presents
such an exceptional or unusual disability picture with such
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
the application of the regular schedular standards. The
record in this case does not reflect that the appellant is
unemployed solely by reason of these disabilities; the
record shows that the appellant is suffering from a number
of non service-connected disabilities which, when combined
with the disabling effects of his left knee and low back
disorders, greatly impact his overall disability picture.
Hence, referral by VARO to VA officials under the above-
cited regulation was not required.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit of the doubt rule as
required by law and VA regulations. 38 U.S.C.A. § 5107(b)
(West 1991); 38 C.F.R. §§ 3.102, 4.3 (1994).
II. Service Connection Claims
Bilateral Defective Hearing and Bilateral Hand Condition
The Board must first determine whether the appellant has
submitted evidence which is sufficient to justify a belief
that his claims for the above-cited disabilities are well-
grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-
grounded claim is a "plausible claim, one which is
meritorious on its own or is capable of substantiation."
Murphy v. Derwinski, 1 Vet.App. 78 (1990). Although the
claim need not be conclusive, it must be accompanied by
supporting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is plausible.
Tirpak v. Derwinski, 2 Vet.App. 609 (1992).
Service medical records are entirely negative for any
specific complaints, findings, or diagnosis of bilateral
defective hearing. Further, service records are entirely
negative for evidence of audiologic impairment or injury due
to acoustic trauma or concussion. The appellant was treated
on a single occasion in December 1958, for complaints of an
infected right eardrum; the diagnosis was otitis media,
right ear and he was provided eardrops for treatment.
However, there is no evidence that this condition was
chronic in nature as there is no further evidence of
treatment in service. Audiological testing completed in
February 1950, January 1957 and upon separation in June
1961, was entirely normal with no reported complaints of
defective hearing. The alleged concussion injury sustained
in 1957 or 1958 as a result of a bulldozer the appellant was
operating striking a landmine and tipping over is not shown
by the service records. Post service medical records do not
reflect a history of a hearing loss condition until
approximately 1971. See Report of VA Audiological
Examination, conducted in March 1991. With respect to the
claimed disability involving the appellant's hands,
specifically, complaints of numbness in his thumbs, service
medical records are entirely negative for any complaints,
findings or diagnosis of an injury or pathology to the
appellant's hands. Further, there is no objective medical
evidence which correlates his current complaints of
radicular-type symptoms of his arms and thumbs to his
service-connected left knee or low back disorders.
Since there is no objective evidence whatsoever linking the
appellant's bilateral defective hearing or current
complaints of numbness of the thumbs to his period of
military service in the 1950's, or which relates a possible
connection between his service-connected disabilities and
these conditions, it is the opinion of the Board that the
claims presented are not well-grounded. See Montgomery v.
Brown, 4 Vet.App. 343 (1993) (service records do not show
the claimed disability and there is no medical evidence to
link a current disability with events in service or with a
service-connected disability); see also, Rabideau v.
Derwinski, 2 Vet.App. 141 (1992) (no evidence of any current
disability associated with an injury or disease sustained in
service). The Board notes that the VA's duty to assist the
appellant in the development of a claim is not for
application if the claim presented is not well-grounded.
Grottveit v. Brown, 5 Vet.App. 91 (1993) (citing 38 U.S.C.A.
§ 5107(a) (West 1991) and Rabideau, 2 Vet.App. 141, 144
(1992)).
The appellant's contentions of record are of insufficient
probative value so as to be dispositive of the issues
presented with respect to bilateral defective hearing and a
bilateral hand condition. See Espiritu v. Derwinski, 2
Vet.App. 492 (1992) (holding that the Board is not required
to entertain unsupported lay speculation on medical issues).
As the claims for service connection for bilateral defective
hearing and a bilateral hand condition are not well-
grounded, the Board does not have jurisdiction to adjudicate
these claims. See Boeck v. Brown, 6 Vet.App. 14 (1993);
Grottveit, 5 Vet.App. 91 (1993). In fact, purported
adjudication of a claim which is not well-grounded is a
nullity in contemplation of law. Grivois v. Brown, 6
Vet.App. 136 (1994). In the opinion of the Board, dismissal
of this appeal on the basis of lack of a well-grounded claim
does not prejudice the appellant. See Bernard v. Brown, 4
Vet.App. 384 (1993). Dismissal of the appeal and vacation
of that portion of VARO's rating action of April 1991, which
decided the bilateral defective hearing claim, and the
rating actions on appeal which have denied service
connection for a bilateral hand condition, will preclude the
more restrictive application of VA "finality" law and
regulations should the appellant desire to attempt to
"reopen" his claim for benefits in the future.
III. New and Material Evidence
The appellant's claims of service connection for
disabilities involving his left hip, right knee and cervical
spine were the subject of unfavorable rating decisions of
VARO in May 1986 (left hip), February 1987 (cervical spine)
and March 1989 (right knee). These decisions are considered
to be final. 38 U.S.C.A. § 7104(b) (West 1991); see also
Glynn v. Brown, 6 Vet.App. 523 (1994) (VA required to review
all of the evidence submitted by the claimant since the last
final denial on the merits in order to determine whether a
claim must be reopened and readjudicated on the merits).
Under pertinent law and VA regulations, as interpreted by
the United States Court of Veterans Appeals, the Board may
reopen and review a claim which has been previously denied
only if new and material evidence is submitted by or on
behalf of the appellant. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (1994); Manio v. Derwinski, 1 Vet.App. 140
(1991). "New" evidence means evidence which is not merely
cumulative or redundant. Colvin v. Derwinski, 1 Vet.App.
171 (1992). "Material" evidence is evidence which is
relevant and probative of the issue at hand and which,
furthermore, when viewed in context of all of the evidence
of record, would change the outcome of the case. Smith v.
Derwinski, 1 Vet.App. 178 (1992).
In the opinion of the Board, the evidence submitted since
VARO denied service connection for the claimed disabilities
in the late 1980's which is new is not material to the issue
of service connection. That is, it does not lead to a
conclusion that, when viewed in the context of all the
evidence of record, there is a reasonable possibility it
would change the outcome of the case. Smith, 1 Vet.App. 178
(1991). On the contrary, a portion of the current evidence,
in particular, the appellant's pleadings, personal
statements as well as his testimony before a VARO hearing
officer in March 1992, and then again in March 1993,
essentially reiterates his previously considered contentions
with respect to the claimed disabilities, and as such are
not considered to be new, such as is required to reopen a
finally denied claim. See Reid v. Derwinski, 2 Vet.App. 312
(1992). Furthermore, the Board cannot entertain unsupported
lay speculation on medical issues. See Espiritu v.
Derwinski, 2 Vet.App. 492 (1992). Similarly, copies of VA
outpatient reports dating through April 1986, and VA
hospital reports dated in October 1970 and February 1975,
are considered to be cumulative of the evidence which was
previously considered by VARO in the above-cited rating
actions.
The evidence which is new, consisting of VA outpatient
treatment reports dating through 1993, a VA hospital report
dated in September 1992, Dr. Smith's report dated February
3, 1986, as well as the reports of VA examinations conducted
in March 1991 (audiological and orthopedic) and August 1991
(neurologic), does not provide a basis to establish a direct
or secondary relationship between the claimed disabilities
and the appellant's period of military service, his post
service complaints or his service-connected left knee and
low back disorders; while a portion of these records show
treatment for renewed complaints of pain in his left hip,
right knee and neck, there is no objective medical evidence
which positively relates any of these complaints to his
military service or the service-connected disabilities.
These findings are not essentially different from the
pertinent facts and medical evidence of record which was
previously considered by VARO. Thus, while the new evidence
submitted subsequent to VARO's rating actions which denied
service connection for the claimed disabilities reflects
ongoing treatment for complaints related thereto, none of
this evidence would change the outcome of the case. Smith,
1 Vet.App. 178, 180 (1991). This evidence merely confirms
the presence of the conditions claimed, for which incurrence
in service or a cause-and-effect relationship to the
service-connected left knee and low back disorders has not
been established.
Accordingly, the Board concludes that the appellant has not
submitted evidence which is new and material such as to form
the basis to reopen and review the previously denied claims
seeking entitlement to service connection for disabilities
of the left hip, right knee or cervical spine.
ORDER
An increased disability evaluation for the service-connected
left knee disorder is denied.
An increased disability evaluation for the service-connected
low back disorder is denied.
Having found the claims not well-grounded, the appeal of a
denial of service connection for bilateral defective hearing
and a bilateral hand condition, is dismissed and that
portion of the VARO rating actions from which an appeal
arose for each of these conditions is vacated.
New and material evidence sufficient to reopen claims
seeking entitlement to service connection for disabilities
involving the appellant's left hip, right knee and cervical
spine not having been submitted, the benefits sought on
appeal remain denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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